This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
I have already said that an attempt to give a historical survey of these varying tendencies would be very interesting. Especially with regard to the last of them, it would certainly appear that it is nothing but the manifestation, in the legal field, of a movement common to the whole province of civilization. The struggle of these new doctrines with older ones is another recurrence, in a new form, of processes which have always agitated humanity and will ever continue to do so. For in the last analysis it is a contest between individualism and objectivism as was stated by Oert-mann.4 The adherents of free legal decision are opposed to the absolute dominion of the letter of the written law, which, according to them, is too rigid and formal to adapt itself to the ever-changing needs of actual life-very much as the Law of Nature School in its day opposed to the omnipotence of the absolute governments the inalienable rights of man. It is true that they are anxious, unsuccessfully enough, to conceal the arbitrary character of the method proposed by them under a cover of sociological reasons. Yet it is obvious that all this is but the preaching of a new law of nature which, like the old one, has no ultimate foundation but subjective whim. In one respect alone, the new law of nature is sharply distinguished from the old one: it is of purely juridical character, while the old school had primarily a political point of view.
3 As a matter of course, I do not fail to recognize that in the writings of the reformers both ideas are closely interwoven. I do not mean to say that we have before us two externally separated movements for reform. My object is rather to show that two different chains of ideas may be distinguished in the movement. The distinct nature of these ideas is not changed by the fact that in specific instances they are externally connected.
4 "Gesetzeszwang und Richterfreiheit," Erlangen University Programme, p. 3.
It is hardly necessary to state that in making these assertions, I have in mind merely those representatives of free legal decision who actually demand that the judge shall be independent of the statute. I am not thinking at all of those who are in favor of something quite different and merely propose a new method of interpretation but who wish to retain the principle that the judge must be bound by the statute. The problem now occupying us deals with this proposition: Is it practicable, or to use a much used modern term "right,"5 to accord to the judge the power of disregarding a statute, the meaning of which is unambiguous, if he believes that its provisions are not in accordance with the just requirements of actual life? In other words, is our law to be merely directory, or is it to be mandatory? Another question, with which we do not deal at present, might be: To what extent is the judge to be bound by the legislator? To what extent should the judge be left to supplement the statute? In that connection the next step would be to inquire how the judge should proceed to supplement the statute. That problem, I believe, has been discussed exhaustively and convincingly by Danz in his "Aus-legung der Rechtsgeschafte."6